FA E R NAT F

TQUO U

BERMUDA

TRUSTEE ACT 1975

1975 : 2

TABLE OF CONTENTS

PART IPRELIMINARY

InterpretationApplication of Act

PART IIGENERAL POWERS OF TRUSTEES AND ESTATE REPRESENTATIVES

General Powers

Identification as trustee obligationsPower of trustees to sell by auction etc.Power to sell subject to depreciatory conditionsPower of trustee to give receiptsPower to compound liabilitiesPower to raise money by sale, mortgage, etc.Protection to purchasers and mortgages dealing with trusteesDevolution of powers or trustsPower to insureApplication of insurance money where policy kept up under any trust, power orobligationPower of trustees of renewable leaseholds to renew and raise money for thepurposeDeposit of documents for safe custodyAccounts and recordsAccounts and records — non-professional trusteesExemption — non-professional trusteeInformation to be retained by exempted company and exempted trusteeReversionary interests, valuations, and audit

12

2A34567891011

12

1313A13AA13AB13B14

1

TRUSTEE ACT 1975

Power to delegate certain functions by estate representativesPower to delegate certain functions by trusteesMeaning of “delegable functions”Power to concur with othersPower to delegate trusts during absence abroad

Indemnities

Protection against liability in respect of rents and covenantsProtection by means of advertisementsProtection in regard to noticePower of trustees to pay to attorney appointed by beneficiaryImplied indemnity of trusteesRemuneration of trust corporations

Maintenance, Advancement and Protective Trusts

Power to apply income for maintenance and to accumulate surplus income duringa minorityPower of advancementProtective trusts

PART IIIAPPOINTMENT AND DISCHARGE OF TRUSTEES

Power of appointing new or additional trusteesSupplemental provisions as to appointment of trusteesEvidence as to a vacancy in a trustRetirement of trustee without a new appointmentVesting of trust property in new or continuing trustees

PART III AMANAGING TRUSTEES

Managing trustees

PART IVPOWERS OF THE COURT

Appointment of New Trustees

Power of court to appoint new trusteesPower of court to authorise remunerationPowers of new trustee appointed by the court

Vesting Orders

Vesting orders of landOrders as to contingent rights of unborn personsVesting order in place of conveyance by infant mortgageeVesting order in place of conveyance by estate representative of mortgageeVesting order consequential on order for sale or mortgage of landVesting order consequential on judgment for specific performance, etc.Effect of vesting order

1515A15B1617

181920212222A

23

2425

2627282930

30A

313233

34353637383940

2

TRUSTEE ACT 1975

Power to appoint person to conveyVesting orders as to stock and things in actionVesting orders of charity propertyVesting orders in relation to infant’s beneficial interestsOrders made upon certain allegations to be conclusive evidenceApplication of vesting order to property out of Bermuda

Jurisdiction to make other Orders

Power of court to authorise transactions relating to trust propertyJurisdiction of court to set aside flawed exercise of fiduciary powerJurisdiction of court to vary trustsPersons entitled to apply for ordersPower to give judgment in absence of a trusteePower to charge costs on trust estatePower to relieve trustee from personal liabilityPower to make beneficiary indemnify for breach of trust

Payment into court

Payment into court by trusteesCivil penaltyCivil penalty - Chief Justice may make rulesCivil penalty - service of notices

PART VINVESTMENTS

[omitted]

PART VAINVESTMENTS

Investment powers

PART VIGENERAL PROVISIONS

Indemnify to banks and othersEnactments repealed [omitted]Commencement [omitted]

FIRST SCHEDULEAUTHORISED INVESTMENTS

SECOND SCHEDULEENACTMENTS REPEALED

[preamble and words of enactment omitted]

414243444546

4747A484950515253

5454A54B54C

55

55A

646566

3

TRUSTEE ACT 1975

PART I

PRELIMINARY

InterpretationIn this Act, unless the context otherwise requires—

“authorised investments” means investments authorised by the instrument, if any,creating the trust for the investment of money subject to the trust, or by anyprovision of law;

“contingent right” as applied to land includes a contingent or executory interest, apossibility coupled with an interest, whether the object of the gift or limitationof the interest, or possibility is or is not ascertained, also a right of entry,whether immediate or future, and whether vested or contingent;

“convey” and “conveyance” as applied to any person include the execution by thatperson of every necessary or suitable assurance for conveying, assigning,appointing, surrendering, or otherwise transferring or disposing of landwhereof he is seized or possessed, or wherein he is entitled to a contingent right,either for his whole estate or for any less estate, together with the performanceof all formalities required by law for the validity of the conveyance;

“court” means the Supreme Court;

“estate representative” means the executor, original or by representation, oradministrator for the time being of a deceased person;

“income” includes rents and profits;

“instrument” includes a statutory provision;

“mortgage” and “mortgagee” relate to every estate and interest regarded in equityas merely a security for money, and every person deriving title under theoriginal mortgagee;

“non-professional trustee” means natural person acting without reward in thecontext of a family situation or a friendship situation;

“pay” as applied in relation to stocks and securities in connection with theexpression “into court” includes a deposit or transfer of the same in or intocourt;

“possession” includes receipt of rents and profits or the right to receive the same,if any; and “possessed” applies to receipt of income of and to any vested estateless than a life estate or interest in possession or in expectancy in any land;

“professional trustee” means a natural person or a body corporate engaged as abusiness, trade, profession or vocation in the provision of services of a trustee;

“property” includes real and personal property, and any estate, share and interestin any property, real or personal, and any debt, and any thing in action, andany other right or interest, whether in possession or not;

1

4

TRUSTEE ACT 1975

“regulated agents and service providers” includes—

AML/ATF regulated financial institutions, as defined by regulation 2(1) ofthe Proceeds of Crime (Anti-Money Laundering and Anti-TerroristFinancing) Regulations 2008;

independent professionals, as defined by regulation 2(1) of the Proceeds ofCrime (Anti-Money Laundering and Anti-Terrorist Financing) Regulations2008;

agent, as defined by section 2 of the Real Estate Brokers’ Licensing Act2017; and

broker, as defined by section 2 of the Real Estate Brokers’ Licensing Act2017.

“rights” include estates and interests;

“sale” includes an exchange;

“securities” include stocks, funds and shares and “securities payable to bearer”include securities transferable by delivery or by delivery and endorsement;

“stock” includes fully paid up shares, and so far as relates to vesting orders madeby the court under this Act, includes any fund, annuity, or securitytransferable in books kept by any company or society, or by instrument oftransfer either alone or accompanied by other formalities, and any share orinterest therein;

“transfer” in relation to stock or securities, includes the performance and executionof every deed, power of attorney, act, and thing on the part of the transferor toeffect and complete the title in the transferee;

“trust” does not include the duties incident to an estate or interest conveyed by wayof mortgage, but with this exception the expressions “trust” and “trustee”extend to implied and constructive trusts, and to cases where the trustee hasa beneficial interest in the trust property, and to the duties incident to the officeof an estate representative, and “trustee” includes an estate representative, and“new trustee” includes an additional trustee;

“trust corporation” means—

a corporation either appointed by the Court in any particular case to be atrustee or holding an unlimited trust licence issued under the Trusts(Regulation of Trusts Business) Act 2001; and

the person for the time being holding office as public trustee in his capacityas corporation sole under the Public Trustee Act 1906 of the Parliament ofthe United Kingdom;

“trust for sale” in relation to land means an immediate trust for sale, whether ornot exercisable at the request or with the consent of any person, and with orwithout power at discretion to postpone the sale;

(a)

(b)

(c)

(d)

(a)

(b)

5

TRUSTEE ACT 1975

“trust funds” include any funds in the hands of a trustee, whether at the time in astate of investment or not;

“ultimate effective control” means a situation where control of a trust is exercisedby means of control other than direct control.

[Section 1 “trust corporation” amended by 1999:19 s.2(1) effective 6 September 1991 (see s.2(2) and (3)of 1999:19) and by 2001:22 Sch 2 para 3 effective 25 January 2002; Section 1 definitions “non-professional trustee” and “professional trustee” inserted by 2017 : 35 s. 3 effective 3 November 2017;Section 1 definitions "regulated agents and service providers" and "ultimate effective control" inserted by2018 : 5 s. 3 effective 21 March 2018]

Application of ActThis Act, except where otherwise expressly provided, applies to trusts

including, so far as this Act applies thereto, executorships and administratorshipsconstituted or created either before, on or after 1 March 1975.

The powers conferred by this Act on trustees are in addition to the powersconferred by the instrument, if any, creating the trust, but those powers, unless otherwisestated, apply if and so far only as a contrary intention is not expressed in the instrument,if any, creating the trust, and have effect subject to the terms of that instrument.

This Act does not affect the legality or validity of anything done before 1 March1975, except as otherwise herein expressly provided.

PART II

GENERAL POWERS OF TRUSTEES AND ESTATE REPRESENTATIVES

General Powers

Identification as trustee obligationsA trustee, when acting on behalf of a trust, shall disclose his status as trustee to

regulated agents and service providers whenever he conducts business with them on behalfof the trust for which he is the trustee.

[Section 2A inserted by 2018 : 5 s. 3 effective 21 March 2018]

Power of trustees to sell by auction etc.Where a trust for sale or a power of sale of property is vested in a trustee, he

may sell or concur with any other person in selling all or any part of the property, eithersubject to prior charges or not, and either together or in lots, by public auction or by privatecontract, subject to any such conditions respecting title or evidence of title or other matteras the trustee thinks fit, with power to vary any contract for sale, and to buy in at anyauction, or to rescind any contract for sale and to re-sell, without being answerable for anyloss.

Where a trust for sale or a power of sale of land held on lease is vested in atrustee, he may make, on such terms and conditions as he may think proper, a sub-lease

2 (1)

(2)

(3)

2A

3 (1)

(2)

6

TRUSTEE ACT 1975

of the land or any part thereof with a nominal reversion, where such sub-lease amounts insubstance to a sale and the trustees have satisfied themselves that it is the most appro-priate method of disposing of the land.

Where trustees lease any land pursuant to any power conferred on them bysubsection (2) they may sell any rent reserved on any reversion expectant upon thedetermination of such lease.

Where any sub-lease purports to have been made in exercise of a powerconferred by this section, that power shall, until the con-trary is proved, be assumed tohave been properly exercised and—

the sub-lessee shall not, either before or on the execution of the sub-lease,be concerned to see or enquire whether a case has arisen to authorise theexecution of that sub-lease; and

neither the sub-lessee nor any of his successors in title shall be concernedto see to the application of any moneys paid in consideration of the lease.

A trust or power to sell or dispose of land includes a trust or power to see ordispose of part thereof whether the division is horizontal, vertical, or made in any other way.

A trust or power to sell or dispose of land includes a power, either with orwithout consideration, to grant by writing an option to purchase or take alease of the land, or any part thereof, or any easement, right, or privilegeover or in relation to the same, at a price or rent fixed at the time of grantingthe option;

every such option shall be made exercisable within an agreed number ofyears not exceeding ten.

Power to sell subject to depreciatory conditionsNo sale made by a trustee shall be impeached by any beneficiary upon the

ground that any of the conditions subject to which the sale was made may have beenunnecessarily depreciatory, unless it also appears that the consideration for the sale wasthereby rendered inadequate.

No sale made by a trustee shall, after the execution of the conveyance, beimpeached as against the purchaser upon the ground that any of the conditions subject towhich the sale was made may have been unnecessarily depreciatory, unless it appears thatthe purchaser was acting in collusion with the trustee at the time when the contract for salewas made.

No purchaser, upon any sale made by a trustee, shall be at liberty to make anyobjection against the title upon any of the grounds aforesaid.

This section applies to sales and purchases made before, on or after 1 March1975.

(3)

(4)

(a)

(b)

(5)

(6) (a)

(b)

4 (1)

(2)

(3)

(4)

7

TRUSTEE ACT 1975

Power of trustee to give receiptsThe receipt in writing of any trustee for any money, securities, or other personal

property or effects payable, transferable, or deliverable to him under any trust or powershall be a sufficient discharge for the same, and shall effectually exonerate the personpaying, transferring, or delivering the same from seeing to the application or beinganswerable for any loss or misapplication thereof.

Power to compound liabilitiesAny one of several estate representatives, or a sole estate representative, or two

or more trustees acting together, or a sole acting trustee where by the instrument, if any,creating the trust, or by any statutory provision, a sole trustee is authorised to execute thetrusts and powers reposed in him, may, if and as he or they think fit—

accept any property, real or personal, before the time at which it is madetransferable or payable; or

sever and apportion any blended trust funds or property; or

pay or allow any debt or claim on any evidence that he or they may thinksufficient; or

accept any composition or any security, real or personal, for any debt orfor any property, real or personal, claimed; or

allow any time for payment of any debt; or

compromise, compound, abandon, submit to arbitration, or otherwisesettle any debt, account, claim, or thing whatever relating to the trust,

and for any of those purposes may enter into, give, execute, and do such agreements,instruments of composition or arrangement, releases, and other things as to him or themseem expedient, without being responsible for any loss occasioned by any act or thing sodone by him or them in good faith.

Power to raise money by sale, mortgage, etc.Where trustees are authorised by the instrument, if any, creating the trust or

by any provision of law to pay or apply capital money subject to the trust for any purposeor in any manner, they shall have and shall be deemed always to have had power to raisethe money required by sale, conversion, calling in, or mortgage of all or any part of the trustproperty for the time being in possession.

This section applies notwithstanding anything to the contrary contained in theinstrument, if any, creating the trust.

Protection to purchasers and mortgages dealing with trusteesNo purchaser or mortgagee, paying or advancing money on a sale or mortgage

purporting to be made under any trust or power vested in the trustees, shall be concernedto see that such money is wanted, or that no more than is wanted is raised, or otherwiseas to the application thereof.

5

6 (1)

(a)

(b)

(c)

(d)

(e)

(f)

7 (1)

(2)

8

8

TRUSTEE ACT 1975

Devolution of powers or trustsWhere a power or trust is given to or imposed on two or more trustees jointly,

the same may be exercised or performed by the survivors or survivor of them for the timebeing.

Until the appointment of new trustees, the estate representatives orrepresentative for the time being of a sole trustee, or, where there were two or more trustees,of the last surviving or continuing trustee, shall be capable of exercising or performing anypower or trust, which was given to, or capable of being exercised by, the sole or last sur-viving or continuing trustee, or other the trustees or trustee for the time being of the trust.

In this section “estate representative” does not include an executor who hasrenounced or has not proved.

Power to insureA trustee may insure against loss or damage from any cause any building or other

insurable property to any amount, including the amount of any insurance already in force,not exceeding the full value of the building or property, and pay the premiums for suchinsurance out of the income thereof or out of the income of any other property subject tothe same trusts without obtaining the consent of any person who may be entitled wholly orpartly to such income.

Application of insurance money where policy kept up under any trust, power orobligation

Money receivable by trustees or any beneficiary under a policy of insuranceagainst the loss or damage of any property subject to a trust or settlement, from whatevercause, shall, where the policy has been kept up under any trust in that behalf or under anypower statutory or otherwise, or in performance of any covenant or of any obligationstatutory or otherwise, be capital money for the purposes of the trust or settlement, as thecase may be.

If any such money is receivable by any person, other than the trustees of thetrust or settlement, that person shall use his best endeavours to recover and receive themoney, and shall pay the net residue thereof, after discharging any costs of recovering andreceiving it, to the trustees of the trust or settlement, or, if there are no trustees capable ofgiving a discharge therefor, into court.

Any such money—

if it was receivable in respect of property held upon trust for sale, shall beheld upon the trusts and subject to the powers and provisions applicableto money arising by a sale under such trust;

in any other case, it shall be held upon trusts corresponding as nearly asmay be with the trusts affecting the property in respect of which it waspayable.

Such money, or any part thereof, may also be applied by the trustees, or, if incourt, under the direction of the court, in rebuilding, reinstating, replacing, or repairing theproperty lost or damaged, but any such application by the trustees shall be subject to the

9 (1)

(2)

(3)

10

11 (1)

(2)

(3)

(a)

(b)

(4)

9

TRUSTEE ACT 1975

consent of any person whose consent is required by the instrument, if any, creating thetrust to the investment of money subject to the trust.

Nothing contained in this section prejudices or affects the right of any personto require any such money or any part thereof to be applied in rebuilding, reinstating, orrepairing the property lost or damaged, or the rights of any mortgagee, lessor, or lessee,whether under any statutory provision or otherwise.

This section applies to policies effected either before, on or after 1 March 1975,but only to money received after such date.

Power of trustees of renewable leaseholds to renew and raise money for the purposeSubject to subsection (2), a trustee of any leaseholds for lives or years which

are renewable from time to time either under any covenant or contract may, if he thinks fit,use his best endeavours to obtain from time to time a renewed lease of the samehereditaments on reasonable terms, and for that purpose may from time to time make orconcur in making a surrender of the lease for the time being subsisting and do all suchother acts as are requisite.

Where by the terms of the instrument, if any, creating the trust the person inpossession for his life or other limited interest is entitled to enjoy the same without anyobligation to renew or to contribute to the expense of renewal, this section shall not applyunless the consent in writing of that person is obtained to the renewal on the part of thetrustee.

Deposit of documents for safe custodyTrustees may deposit any documents held by them relating to the trust, or to the

trust property, with any bank or trust company, and any sum payable in respect of suchdeposit shall be paid out of the income of the trust property.

Accounts and recordsA trustee, who is subject to section 9 of the Trusts (Regulation of Trust

Business) Act 2001 and irrespective of whether he is exempted under the provisions of anOrder made pursuant to section 10 of the Trusts (Regulation of Trust Business) Act 2001,shall keep or cause to be kept accurate accounts and records (including underlyingdocumentation) of the trustee’s trusteeship appropriate to the trust and trust property withrespect to—

assets;

liabilities;

additions to trust and distributions, purchases and sales; and

income and expenses.

All accounts and records required to be kept under subsection (1) shall beretained for a minimum period of five years from the date on which they are prepared.

(5)

(6)

12 (1)

(2)

13

13A (1)

(a)

(b)

(c)

(d)

(2)

10

TRUSTEE ACT 1975

A trustee referred to in subsection (1) shall, from time to time, keep a currentand accurate record of the names and addresses of the regulated agents and serviceproviders who provide service to the trust of which he is the trustee.

A trustee who knowingly and wilfully contravenes subsection (1) or (2) shall besubject to a penalty of seven thousand five hundred dollars.

[Section 13A inserted by 2012 : 27 s. 5 effective 13 July 2012; Section 13A subsection (2A) inserted by2018 : 5 s. 3 effective 21 March 2018]

Accounts and records — non-professional trusteesA non-professional trustee shall keep or cause to be kept accurate records

(including underlying documentation) with respect to his knowledge of proof of the identity,residential address and relevant information about—

the settlor;

the protector;

the beneficiaries;

any other natural person exercising ultimate effective control over thetrust,

of the trust of which he is a trustee.

All records required to be kept under subsection (1) shall be retainedthroughout the trust relationship.

A non-professional trustee shall keep records of all transactions carried out byor under the trust of which he is a trustee and such records shall be retained for a minimumof five years beginning on the date on which each transaction is completed.

[Section 13AA inserted by 2017 : 35 s. 3 effective 3 November 2017; Section 13AA subsection (1) amendedby 2018 : 5 s. 3 effective 21 March 2018]

Exemption — non-professional trusteeA non-professional trustee shall be exempt from the requirements of section 13AA

(1) and (3) in circumstances where he—

is co-trustee of a trust and at least one other co-trustee is a licensed trusteeunder the Trusts (Regulation of Trust Business ) Act 2001; or

appoints a person who is a licensed trustee under the Trusts (Regulationof Trust Business) Act 2001 to maintain the trust records of the trust ofwhich he is a trustee.

[Section 13AB inserted by 2017 : 35 s. 3 effective 3 November 2017]

Information to be retained by exempted company and exempted trusteeAny company exempted under an order made pursuant to section 10(2) of the

Trusts (Regulation of Trust Business) Act 2001, shall retain identification information inrespect of—

(2A)

(3)

13AA (1)

(a)

(b)

(c)

(d)

(2)

(3)

13AB

(a)

(b)

13B (1)

11

TRUSTEE ACT 1975

trustees;

settlors;

protectors;

beneficiaries;

any other natural person exercising ultimate effective control over thetrust; or

where the individuals (or some of the individuals) benefiting from the trusthave not been determined, the class of persons in whose main interest thetrust is set up, or operates,

for the trusts for which it acts as trustee or trust administrator.

Any other trustee, whether exempted under an order made pursuant to section10(2) of the Trust (Regulation of Trust Business) Act 2001 or referred to in paragraph 7 ofthe Trusts (Regulation of Trust Business) Exemption Order 2002, shall retain identificationinformation in respect of—

trustees;

settlors;

protectors;

beneficiaries;

any other person exercising ultimate effective control over the trust; or

where the individuals (or some of the individuals) benefiting from the trusthave not been determined, the class of persons in whose main interest thetrust is set up, or operates,

for the trust for which they act as trustee or trust administrator.

Any company, or other trustee, exempted under an order made pursuant tosection 10(2) of the Trusts (Regulation of Trust Business) Act 2001, which knowingly andwilfully contravenes—

the provisions of subsection (1), in the case of such company that isexempted; or

the provisions of subsection (2), in the case of such trustee that isexempted,

shall be guilty of an offence and liable on summary conviction to a fine of $75 per day forevery day that such company or trustee fails to comply as required.

A company or other trustee exempted under an order made pursuant to section10(2) of the Trusts (Regulation of Trust Business) Act 2001, shall, from time to time, keep

(a)

(b)

(c)

(d)

(e)

(f)

(2)

(a)

(b)

(c)

(d)

(e)

(f)

(3)

(a)

(b)

(4)

12

TRUSTEE ACT 1975

a current and accurate record of the names and addresses of the regulated agents andservice providers who provide service to the trust of which they are a trustee.

[Section 13B inserted by 2012 : 27 s. 5 effective 13 July 2012; Section 13B amended by 2018 : 5 s. 3effective 21 March 2018]

Reversionary interests, valuations, and auditWhere trust property includes any share, estate or interest in property not

vested in the trustees, or the proceeds of the sale of any such property, or any other thingin action, the trustees on the same falling into possession, or becoming payable ortransferable may—

agree or ascertain the amount or value thereof or any part thereof in suchmanner as they may think fit;

accept in or towards satisfaction thereof, at the market or current value,or upon any valuation or estimate of value which they may think fit, anyauthorised investments;

allow any deductions for duties, costs, charges and expenses which theymay think proper or reasonable;

execute any release in respect of the premises so as effectually to dischargeall accountable parties from all liability in respect of any matters comingwithin the scope of such release,

without being responsible in any such case for any loss occasioned by any act or thing sodone by them in good faith.

The trustees shall not be under any obligation and shall not be chargeable withany breach of trust by reason of any omission—

to apply for a writ of distringas or any stop or other like order upon anysecurities or other property out of or on which such share, estate or interestor other thing in action as aforesaid is derived, payable or charged; or

to take any proceedings on account of any act, default, or neglect on thepart of the persons in whom such securities or other property or any ofthem or any part thereof are for the time being, or had at any time been,vested;

unless and until required in writing so to do by some person, or the guardian of someperson, beneficially interested under the trust, and unless also due provision is made totheir satisfaction for payment of the costs of any proceedings required to be taken so,however, that nothing in this subsection shall relieve the trustees of the obligation to get inand obtain payment or transfer of such share, estate or interest or other thing in action onthe same falling into possession.

Trustees may, for the purpose of giving effect to the trust, or any of theprovisions of the instrument, if any, creating the trust or of any Act, from time to time (bysuitably qualified agents) ascertain and fix the value of any trust property in such manner

14 (1)

(a)

(b)

(c)

(d)

(2)

(a)

(b)

(3)

13

TRUSTEE ACT 1975

as they think proper, and any valuation so made in good faith shall be binding upon allpersons interested under the trust.

Trustees may, in their absolute discretion, from time to time, but not more thanonce in every three years unless the nature of the trust or any special dealings with thetrust property make a more frequent exercise of the right reasonable, cause the accountsof the trust property to be examined or audited by an independent accountant, and shall,for that purpose, produce such vouchers and give such information to him as he mayrequire; and the costs of such examination or audit, including the fee of the auditor, shallbe paid out of the capital or income of the trust property, or partly in one way and partly inthe other, as the trustees, in their absolute discretion, think fit, but, in default of anydirection by the trustees to the contrary in any special case, costs attributable to capitalshall be borne by capital and those attributable to income by income.

Power to delegate certain functions by estate representativesThis section is subject to the terms of the will, if any.

Estate representatives may delegate all or any of their functions as estaterepresentative to—

a delegate; or

one of the estate representatives (a “co-estate representative”),

and may pay such delegate or co-estate representative out of the property of the estate,whether income or capital or partly each as they may think fit.

Subsections 15A(3) and (4) apply, with the necessary changes, to the exerciseof the power of delegation under subsection (2).

[Section 15 repealed and replaced by 1999:19 s.3(1) effective 10 July 1999]

Power to delegate certain functions by trusteesThis section and section 15B are subject to the terms of the trust, and without

prejudice to any of the powers conferred by sections 17 and 24.

Trustees of a trust may delegate any or all of their delegable functions to—

a delegate; or

one of the trustees (a “co-trustee”),

and may pay such delegate or co-trustee out of the trust property, whether income or capitalor partly each as they may see fit.

In exercising any power to delegate, and in supervising the delegate, thetrustees shall exercise reasonable care, skill and caution.

Delegation under this section to a delegate, but not to a co-trustee, may bemade on terms which—

limit the liability of the delegate;

(4)

15 (1)

(2)

(a)

(b)

(3)

15A (1)

(2)

(a)

(b)

(3)

(4)

(a)

14

TRUSTEE ACT 1975

do not prohibit actual or potential conflicts of interest in dealing with thetrust property; or

permit sub-delegation, including on such terms as are mentioned inparagraphs (a) and (b);

and the trustees shall not, by reason of delegating on such terms, be responsible for the actor default of any delegate or sub-delegate, provided that the trustees honestly believeddelegation to that delegate on those terms to be in the best interests of the trust as a whole.

In this section “trustee” does not include an estate representative.

[Section 15A inserted by 1999:19 s.3(2) effective 10 July 1999]

Meaning of “delegable functions”For the purposes of section 15A, “delegable functions” shall be interpreted in

accordance with this section.

Functions of an administrative or managerial nature (including discretionaryinvestment powers) are delegable functions.

The following functions are not delegable—

the formulation of policy criteria governing the investment or otherapplication of trust property, and any decision as to the amount of moneythat may be raised on the security of trust property;

the exercise of any discretionary duties or powers concerning distributionof income or capital to, or use of the trust property by, persons beneficiallyinterested under the trust, or the appropriation of trust property insatisfaction of a beneficiary’s entitlement to any capital;

the exercise of any power to determine or to alter any interest of a personbeneficially interested under the trust, including a power to deal withincome or capital expenditure or receipts as if they were not of such incomeor capital nature and a power to bring forward or postpone the closing datefor the total or partial termination of the trust;

the exercise of any power to add a person or class of persons to, or excludea person or class of person from, those who are beneficially interestedunder the trust;

the exercise of any power to add to, revoke or vary the administrativepowers under the trust or to release or restrict any powers under the trust;

the exercise of any power to appoint or remove trustees;

the exercise of any power to change the proper law governing the validity,administration or any other severable aspect of the trust.

[Section 15 B inserted by 1999:19 s.3(2) effective 10 July 1999]

(b)

(c)

(5)

15B (1)

(2)

(3)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

15

TRUSTEE ACT 1975

Power to concur with othersWhere an undivided share in the proceeds of sale of land directed to be sold, or in

any other property, is subject to a trust, or forms part of the estate of a testator or intestate,the trustees or estate representatives may (without prejudice to any trust for sale affectingthe entirety of the land and the powers of the trustees for sale in reference thereto) executeor exercise any trust or power vested in them in relation to such share in conjunction withthe persons entitled to or having power in that behalf over the other share or shares, andnotwithstanding that any one or more of the trustees or estate representatives may be en-titled to or interested in any such other share, either in his or their own right or in a fiduciarycapacity.

Power to delegate trusts during absence abroadA trustee intending to remain out of Bermuda may, notwithstanding any rule

of law or equity to the contrary, by power of attorney, delegate to any person (including atrust corporation) the execution or exercise during his absence from Bermuda of all or anytrusts, powers and discretions vested in him as such trustee, either alone or jointly withany other person or persons so, however, that a person being the only other co-trustee andnot being a trust corporation shall not be appointed to be an attorney under this subsection.

The donor of a power of attorney given under this section shall be liable for theacts or defaults of the donee in the same manner as if they were the acts or defaults of thedonor.

The power of attorney shall not come into operation unless and until the donoris out of Bermuda, and shall be revoked by his return.

In favour of any person dealing with the donee, any act done or instrumentexecuted by the donee shall, notwithstanding that the power has never come into operationor has been revoked by the act of the donor or by his death or return to Bermuda orotherwise, be as valid and effectual as if the donor were alive and of full capacity, and hadhimself done such act or executed such instrument, unless such person had actual noticethat the power had never come into operation or of the revocation of the power before suchact was done or instrument executed.

For the purpose of executing or exercising the trusts or powers delegated tohim, the donee may exercise any of the powers conferred on the donor as trustee by anyAct or by the instrument creating the trust, including power, for the purpose of the transferof any securities, himself to delegate to an attorney power to transfer such securities butnot including the power of delegation conferred by this section.

The fact that it appears from any power of attorney given under this section, orfrom any evidence required for the purposes of any such power of attorney or otherwise,that in dealing with any securities the donee of the power is acting in the execution of atrust shall not be deemed for any purpose to affect any person in whose books the securi-ties are registered with any notice of the trust.

[Section 17(1) amended by 1999:19 s.4 effective 10 July 1999]

16

17 (1)

(2)

(3)

(4)

(5)

(6)

16

TRUSTEE ACT 1975

Indemnities

Protection against liability in respect of rents and covenantsWhere an estate representative or trustee liable for—

any rent, covenant, or agreement reserved by or contained in any lease; or

any rent, covenant or agreement payable under or contained in any grantmade in consideration of a rent charge; or

any indemnity given in respect of any rent, covenant or agreement referredto in either of the foregoing paragraphs,

satisfies all liabilities under the lease or grant which may have accrued, and been claimed,up to the date of the conveyance hereinafter mentioned, and, where necessary, sets aparta sufficient fund to answer any future claim that may be made in respect of any fixed andascertained sum which the lessee or grantee agreed to lay out on the property demised orgranted, although the period for laying out the same may not have arrived, then and in anysuch case the estate representative or trustee may convey the property demised or grantedto a purchaser, legatee, devisee, or other person entitled to call for a conveyance thereofand thereafter—

he may distribute the residuary real and personal estate of the deceasedtestator or intestate, or, as the case may be, the trust estate (other thanthe fund, if any, set apart as aforesaid) to or amongst the persons entitledthereto, without appropriating any part, or any further part, as the casemay be, of the estate of the deceased or of the trust estate to, meet anyfuture liability under the said lease or grant;

notwithstanding such distribution, he shall not be personally liable inrespect of any subsequent claim under the said lease or grant.

This section operates without prejudice to the right of the lessor or grantor, orthe persons deriving title under the lessor or grantor, to follow the assets of the deceasedor the trust property into the hands of the persons amongst whom the same may have beenrespectively distributed, and applies notwithstanding anything to the contrary in the willor other instrument, if any, creating the trust.

In this section “lease” includes an underlease and an agreement for a lease orunderlease and any instrument giving any such indemnity as aforesaid or varying theliabilities under the lease; “grant” applies to a grant whether the rent is created bylimitation, grant, reservation, or otherwise, and includes an agreement for a grant and anyinstrument giving any such indemnity as aforesaid or varying the liabilities under the grant;“lessee” and “grantee” include persons respectively deriving title under them.

Protection by means of advertisementsWith a view to the conveyance to, or distribution among, the persons entitled

to any real or personal property, the trustees of a settlement or of a disposition on trust forsale may give notice by advertisement published three times at intervals of not less thanone week in a newspaper for the time being approved as the Gazette, of their intention to

18 (1)

(a)

(b)

(c)

(i)

(ii)

(2)

(3)

19 (1)

17

TRUSTEE ACT 1975

make such conveyance or distribution as aforesaid, and requiring any person interested tosend to the trustees within the time, not being less than one month from the publication ofthe last of the notices, fixed in the notice, particulars of his claim in respect of the propertyor any part thereof to which the notice relates.

At the expiration of the time fixed by the notice the trustees may convey ordistribute the property or any part thereof to which the notice relates, to or among thepersons entitled thereto, having regard only to the claims, whether formal or not, of whichthe trustees then had notice and shall not, as respects the property so conveyed ordistributed, be liable to any person whose claim the trustees have not had notice at the timeof conveyance or distribution; but nothing in this section—

prejudices the right of any person to follow the property, or any propertyrepresenting the same, into the hands of any person, other than apurchaser, who may have received it; or

frees the trustees from any obligation to make inquiries and searches orobtain official certificates of search similar to those which an intendingpurchaser would be advised to make or obtain.

This section applies notwithstanding anything to the contrary in the will orother instrument, if any, creating the trust.

This section does not apply to the protection of estate representatives by meansof advertisements under section 53 of the Administration of Estates Act 1974 [title 26 item12].

Protection in regard to noticeA trustee or estate representative acting for the purposes of more than one trust or

estate shall not, in the absence of fraud, be affected by notice of any instrument, matter,fact or thing in relation to any particular trust or estate if he has obtained notice thereofmerely by reason of his acting or having acted for the purposes of another trust or estate.

Power of trustees to pay to attorney appointed by beneficiaryA trustee acting or paying money in good faith under or in pursuance of any power

of attorney shall not be liable for any such act or payment by reason of the fact that at thetime of the act or payment the person who gave the power of attorney was subject to anydisability or bankrupt or dead, or had done or suffered some act or thing to avoid the power,if this fact was not known to the trustee at the time of his so acting or paying so, however,that—

nothing in this section shall affect the right of any person entitled to themoney against the person to whom the payment is made;

the person so entitled shall have the same remedy against the person towhom the payment is made as he would have had against the trustee.

(2)

(a)

(b)

(3)

(4)

20

21

(a)

(b)

18

TRUSTEE ACT 1975

Implied indemnity of trusteesA trustee shall be chargeable only for money and securities actually received

by him notwithstanding his signing any receipt for the sake of conformity, and shall beanswerable and accountable only for his own acts, receipts, neglects, or defaults, and notfor those of any other trustee, nor for those of any bank, broker, or other person with whomany trust money or securities may be deposited, nor for the insufficiency or deficiency ofany securities, nor for any other loss, unless the same happens through his own deliberate,reckless or negligent breach of an equitable duty.

A trustee may reimburse himself or pay or discharge out of the trust premisesall expenses incurred in or about the execution of the trusts or powers.

[Section 22(1) amended by 1999:19 s.5 effective 10 July 1999]

Remuneration of trust corporationsSubject to—

any contrary intention in the terms of the trust; or

any order of a court,

a trust corporation shall be entitled to reasonable remuneration for its services as trustee,in addition to reimbursement of its expenses under section 22(2).

[Section 22A inserted by 1999:19 s.6 effective 10 July 1999]

Maintenance, Advancement and Protective Trusts

Power to apply income for maintenance and to accumulate surplus income during aminority

Where any property is held by trustees in trust for any person for any estate orinterest whatsoever, whether vested or contingent, then, subject to any prior estates orinterests or charges affecting that property—

during the infancy of any such person, if his estate or interest so longcontinues, the trustees may, at their sole discretion, pay to his parent orguardian, if any, or otherwise apply for or towards his maintenance oreducation, or otherwise for his benefit, the whole or such part, if any, ofthe income of that property as may, in all the circumstances, bereasonable, whether or not there is—

any other fund applicable to the same purpose; or

any person bound by law to provide for his maintenance or education;and

if such person on attaining the age of eighteen years has not a vested estateor interest in such income, the trustees shall thenceforth pay the incomeof that property and of any accretion thereto under subsection (3) to him,until he either attains a vested estate or interest therein or dies, or untilfailure of his estate or interest.

22 (1)

(2)

22A

(a)

(b)

23 (1)

(a)

(i)

(ii)

(b)

19

TRUSTEE ACT 1975

In deciding whether the whole or any part of the income of the property isduring a minority to be paid or applied for the purposes aforesaid, the trustees shall haveregard to the age of the infant and his requirements and generally to the circumstances ofthe case, and in particular to what other income, if any, is applicable for the same purposes;and where trustees have notice that the income of more than one fund is applicable forthose purposes, then, so far as practicable, unless the entire income of the funds is paid orapplied as aforesaid or the court otherwise directs, a proportionate part only of the incomeof each fund shall be so paid or applied.

During the infancy of any such person, if his estate or interest so longcontinues, the trustees shall accumulate all the residue of that income in the way ofcompound interest by investing the same and the resulting income thereof from time to timein authorised investments, and shall hold those accumulations as follows:—

if any such person—

attains the age of eighteen years, or marries under that age, and hisestate or interest in such income during his infancy or until his mar-riage is a vested estate or interest; or

on attaining the age of eighteen years or on marriage under that agebecomes entitled to the property from which such income arose in feesimple, or absolutely, or for an entailed estate or interest,

the trustees shall hold the accumulation in trust for such personabsolutely, but without prejudice to any provision with respect theretocontained in any settlement by him made under any statutory powersduring his infancy, and so that the receipt of such person after marriage,and though still an infant, shall be a good discharge; and

in any other case the trustees shall, notwithstanding that such person hada vested estate or interest in such income, hold the accumulations as anaccretion to the capital of the property from which such accumulationsarose, and as one fund with such capital for all purposes, and so that, ifsuch property is settled land, such accumulations shall be held upon thesame trusts as if the same were capital money arising therefrom,

but the trustees may, at any time during the infancy of such person if his estate or interestso long continues, apply those accumulations, or any part thereof, as if they were incomearising in the then current year.

This section applies in the case of a contingent estate or interest only if thelimitation or trust carries the intermediate income of the property, but it applies to a futureor contingent legacy by the parent of, or a person standing in loco parentis to, the legatee,if and for such period as, under any provision of law, the legacy carries interest for themaintenance of the legatee, and in any such case at last aforesaid the rate of interest shall(if the income available is sufficient, and subject to any rules of court to the contrary) befive per centum per annum.

This section applies to a vested annuity in like manner as if the annuity werethe income of property held by trustees in trust to pay the income thereof to the annuitant

(2)

(3)

(a)

(i)

(ii)

(b)

(4)

(5)

20

TRUSTEE ACT 1975

for the same period for which the annuity is payable, save that in any case accumulationsmade during the infancy of the annuitant shall be held in trust for the annuitant or hisestate representatives absolutely.

This section does not apply where the instrument, if any, under which theinterest arises came into operation before 1 March 1975.

[Section 23 subsection (1)(b), (3)(a)(i) and (ii) amended by 2001:20 s.7(1) & Sch 2 effective 1 November2001]

Power of advancementTrustees may at any time or times pay or apply any capital money subject to a

trust, for the advancement or benefit, in such manner as they may, in their absolutediscretion, think fit, of any person entitled to the capital of the trust property or of any sharethereof, whether absolutely or contingently on his attaining any specified age or on theoccurrence of any other event, or subject to a gift over on his death un-der any specifiedage or on the occurrence of any other event, and whether in possession or in remainder orreversion, and such payment or application may be made notwithstanding that the estateor interest of such person is liable to be defeated by the exercise of a power of appointmentor revocation, or to be diminished by the increase of the class to which he belongs so,however, that—

the money so paid or applied for the advancement or benefit of any personshall not exceed altogether the amount of the presumptive or vested share,estate or interest of that person in the trust property; and

if that person is or becomes absolutely and indefeasibly entitled to a sharein the trust property the money so paid or applied shall be brought intoaccount as part of such share; and

no such payment or application shall be made so as to prejudice anyperson entitled to any prior life or other estate or interest, whether vestedor contingent, in the money paid or applied unless such person is in exis-tence and of full age and consents in writing to such payment orapplication.

This section applies only where the trust property consists of—

money or securities which are not by any provision of law or in equityconsidered as land; or

property held upon trust for sale, calling in and conversion and theproceeds of such sale, calling in and conversion are not in equityconsidered as land.

[Repealed]

For the avoidance of doubt, when exercising the power of advancement thetrustees may—

create any provisions, including—

(6)

24 (1)

(a)

(b)

(c)

(2)

(a)

(b)

(3)

(4)

(a)

21

TRUSTEE ACT 1975

discretionary trusts and dispositive, administrative or managerialpowers exercisable by any person; and

the delegation of discretions and duties to any person; and

provide that the capital money may become subject to the terms of anyother trust,

provided that the requirements of subsection (1) are satisfied.

[Section 24 subsection (4) added by 1999:19 s.7 effective 10 July 1999; subsection (3) repealed by2004:34 s.2 effective 17 December 2004]

Protective trustsWhere any income, including an annuity or other periodical income payment,

is directed to be held on protective trusts for the benefit of any person (in this sectionreferred to as “the principal beneficiary”) for the period of his life or any less period, then,during that period (in this section referred to as “the trust period”) the said income shall,without prejudice to any prior estate or interest be held—

upon trust for the principal beneficiary until whichever of the followingevents shall first occur—

the trust period expires; or

the principal beneficiary (whether before or after the termination of anyprior estate or interests) does or attempts to do or suffers any act orthing, or until any other event (not being an advance under anystatutory or express power) happens whereby, if during the trust periodthe said income were payable to the principal beneficiary absolutely, hewould be deprived of the right to receive the same or any part thereof;and

upon trust, where any of the events referred to in subparagraph (ii) ofparagraph (a) happens during the subsistence of the trust period, to applythe said income (as the trustees in their absolute discretion, without beingliable to account for the exercise of their discretion, think fit) for themaintenance or support, or otherwise for the benefit, of all or any one ormore exclusively of the other or others of the following persons—

the principal beneficiary and his or her wife or husband, if any, and hisor her children or more remote issue, if any; and

if as often as and while there is no living issue of the principalbeneficiary, the principal beneficiary and his or her wife or husband, ifany, and the persons who, if the principal beneficiary were actuallydead without having married would for the time being be his next ofkin,

so that the trustees in the exercise of their discretion may apply any incomeaccrued but unapplied in any previous year for the purposes of the trustsimplied as aforesaid in any subsequent year.

(i)

(ii)

(b)

25 (1)

(a)

(i)

(ii)

(b)

(i)

(ii)

22

TRUSTEE ACT 1975

This section does not apply to trusts coming into operation before 1 March1968, and has effect subject to any variation of the trusts implied as aforesaid contained inthe instrument creating the trust.

Nothing in this section operates to validate any trust which would, if containedin the instrument creating the trust, be liable to be set aside.

PART III

APPOINTMENT AND DISCHARGE OF TRUSTEES

Power of appointing new or additional trusteesWhere a trustee, whether original, substituted or additional, and whether

appointed by a court or otherwise, is dead, or remains out of Bermuda for more than twelvemonths, or desires to be discharged from all or any of the trusts or powers reposed in orconferred on him, or refuses or is unfit to act therein, or is incapable of acting therein,then—

the person or persons nominated for the purpose of appointing newtrustees by the instrument, if any, creating the trust; or

if there is no such person, or no such person able and willing to act, thenthe surviving or continuing trustees or trustee for the time being, or theestate representatives of the last surviving or continuing trustee,

may, by writing, appoint one or more other persons (whether or not being the personsexercising the power) to be a trustee or trustees in the place of the trustee so deceased,remaining out of Bermuda, desiring to be discharged, refusing, or being unfit or beingincapable, as aforesaid.

Where a trustee has been removed under a power contained in the instrumentcreating the trust, a new trustee or new trustees may be appointed in the place of the trusteewho is removed, as if he were dead, or, in the case of a corporation, as if the corporationdesired to be discharged from the trust, and this section shall apply accordingly.

Where a corporation being a trustee is or has been dissolved, either before, onor after 1 March 1975, then, for the purposes of this section and of any statutory provisionreplaced thereby, the corporation shall be deemed to be and to have been from the date ofthe dissolution incapable of acting in the trusts or powers reposed in or conferred on thecorporation.

The power of appointment given by subsection (1) or any similar previousstatutory provision to the estate representatives of a last surviving or continuing trusteeshall be and shall be deemed always to have been exercisable by the executors for the timebeing (whether original or by representation) of such surviving or continuing trustee whohave proved the will of their testator or by the administrators for the time being of suchtrustee without the concurrence of any executor who has renounced or has not proved.

But a sole or last surviving executor intending to renounce, or all the executorswhere they all intend to renounce, shall have and shall be deemed always to have had

(2)

(3)

26 (1)

(a)

(b)

(2)

(3)

(4)

(5)

23

TRUSTEE ACT 1975

power, at any time before renouncing probate, to exercise the power of appointment givenby this section, or by any similar previous enactment, if willing to act for that purpose andwithout thereby accepting the office of executor.

Where a sole trustee, other than a trust corporation, is or has been originallyappointed to act in a trust, or where, in the case of any trust, there are not more than threetrustees (none of them being a trust corporation) whether original, substituted or additionaland whether appointed by the court or otherwise, then and in any such case—

the person or persons nominated for the purpose of appointing newtrustees by the instrument, if any, creating the trust; or

if there is no such person, or no such person able and willing to act, thenthe trustee or trustees for the time being,

may, by writing, appoint one or more other persons (whether or not being the personsexercising the power) to be an additional trustee or additional trustees, but it shall not beobligatory to appoint any additional trustee unless the instrument, if any, creating the trust,or any statutory provision provides to the contrary.

Every new trustee appointed under this section as well before as after all thetrust property becomes by law, or by assurance, or otherwise, vested in him shall have thesame powers, authorities, and discretions, and may in all respects act as if he had beenoriginally appointed a trustee by the instrument, if any, creating the trust.

The provisions of this section relating to a trustee who is dead include the caseof a person nominated trustee in a will but dying before the testator, and those relative toa continuing trustee include a refusing or retiring trustee, if willing to act in the executionof the provisions of this section.

Where a trustee is incapable, by reason of mental disorder within the meaningof the Mental Health Act 1968 [title 11 item 36], of exercising his functions as trustee andis also entitled in possession to some beneficial interest in the trust property, noappointment of a new trustee in his place shall be made by virtue of subsection (1)(b) unlessleave to make the appointment has been given by the judicial authority appointed to act forthe purposes of Part IV of the Mental Health Act 1968.

Supplemental provisions as to appointment of trusteesOn the appointment of a trustee for the whole or any part of trust property—

the number of trustees may be increased; and

a separate set of trustees may be appointed for any part of the trustproperty held on trusts distinct from those relating to any other part orparts of the trust property, notwithstanding that no new trustees or trusteeare or is to be appointed for other parts of the trust property, and anyexisting trustee may be appointed or remain one of such separate set oftrustees, or, if only one trustee was originally appointed, then, save ashereinafter provided, one separate trustee may be so appointed; and

(6)

(a)

(b)

(7)

(8)

(9)

27

(a)

(b)

24

TRUSTEE ACT 1975

it shall not be obligatory, save as hereinafter provided, to appoint morethan one new trustee where only one trustee was originally appointed, orto fill up the original number of trustees where more than two trustees wereoriginally appointed but, except where only one trustee was originallyappointed, a trustee shall not be discharged from his trust unless therewill be a trust corporation, any other body corporate, whereverincorporated, with power to act as a trustee or at least two individuals toact as trustees to perform the trust; and

any assurance or thing requisite for vesting the trust property, or any partthereof, in a sole trustee, or jointly in the persons who are the trustees,shall be executed or done.

[Section 27 amended by 1999:19 effective 10 July 1999]

Evidence as to a vacancy in a trustA statement, contained in any instrument coming into operation after 1 March

1975 by which a new trustee is appointed for any purpose connected with land, to the effectthat a trustee has remained out of Bermuda for more than twelve months or refuses or isunfit to act, or is incapable of acting, or that he is not entitled to a beneficial interest in thetrust property in possession, shall, in favour of a bona fide purchaser, be conclusiveevidence of the matter stated.

In favour of such purchaser any appointment of a new trustee depending onthat statement, and any vesting declaration, express or implied, consequent on theappointment, shall be valid.

Retirement of trustee without a new appointmentWhere a trustee is desirous of being discharged from the trust or a severable

part of the trust, and after his discharge there will be a trust corporation, any other bodycorporate, wherever incorporated, with power to act as a trustee or at least two individualsto act as trustees to perform the trust, then, if such trustee as aforesaid by deed declaresthat he is desirous of being discharged from the trust or the severable part thereof, and ifhis co-trustees and such other person, if any, as is empowered to appoint trustees, by deedconsent to the discharge of the trustee, and to the vesting in the co-trustees alone of thetrust property, the trustee desirous of being discharged shall be deemed to have retired fromthe trust or a severable part thereof, and shall, by the deed, be discharged therefrom underthis Act, without any new trustee being appointed in his place.

Any assurance or thing requisite for vesting the trust property in the continuingtrustees alone shall be executed or done.

[Section 29 amended by 1999:19 s.8 effective 10 July 1999]

Vesting of trust property in new or continuing trusteesWhere by a deed a new trustee is appointed to perform any trust, then—

if the deed contains a declaration by the appointor to the effect that anyestate or interest in any land subject to the trust, or in any chattel so

(c)

(d)

28 (1)

(2)

29 (1)

(2)

30 (1)

(a)

25

TRUSTEE ACT 1975

subject, or the right to recover or receive any debt or other thing in actionso subject, shall vest in the persons who by virtue of the deed become orare the trustees for performing the trust, the deed shall operate, withoutany conveyance or assignment, to vest in those persons as joint tenantsand for the purposes of the trust the estate, interest or right to which thedeclaration relates; and

if the deed is made after 1 March 1975 and does not contain such adeclaration, the deed shall, subject to any express provision to the contrarytherein contained, operate as if it had contained such a declaration by theappointor extending to all the estates, interests and rights with respect towhich a declaration could have been made.

Where by a deed a retiring trustee is discharged under the statutory powerwithout a new trustee being appointed, then—

if the deed contains such a declaration as aforesaid by the retiring andcontinuing trustees, and by the other person, if any, empowered to appointtrustees, the deed shall, without any conveyance or assignment, operateto vest in the continuing trustees alone, as joint tenants, and for thepurposes of the trust, the estate, interest, or right to which the declarationrelates; and

if the deed is made after 1 March 1975 and does not contain such adeclaration, the deed shall, subject to any express provision to the contrarytherein contained, operate as if it had contained such a declaration by suchpersons as aforesaid extending to all the estates, interests and rights withrespect to which a declaration could have been made.

An express vesting declaration, whether made before, on or after 1 March 1975,shall, notwithstanding that the estate, interest or right to be vested is not expressly referredto, and provided that the other statutory requirements were or are complied with, operateand be deemed always to have operated (but without prejudice to any express provision tothe contrary contained in the deed of appointment or discharge) to vest in the personsrespectively referred to in subsections (1) and (2), as the case may require, such estates,interests and rights as are capable of being and ought to be vested in those persons.

This section does not extend—

to land conveyed by way of mortgage for securing money subject to thetrust, except land conveyed on trust for securing debentures or debenturestock;

to land held under a lease which contains any covenant, condition oragreement against assignment or disposing of the land without licence orconsent, unless, prior to the execution of the deed containing expressly orimpliedly the vesting declaration, the requisite licence or consent has beenobtained, or unless, by virtue of any rule of law, the vesting declaration,express or implied, would not operate as a breach of covenant or give riseto a forfeiture;

(b)

(2)

(a)

(b)

(3)

(4)

(a)

(b)

26

TRUSTEE ACT 1975

to any share, stock, annuity or property which is only transferable in bookskept by a company or other body, or in manner directed by or under anystatutory provision.

In this subsection “lease” includes an underlease and an agreement for a lease orunderlease.

PART III A

MANAGING TRUSTEES

Managing trusteesA trust instrument may contain provisions by virtue of which the exercise of any of

the trustees’ powers may be reserved to a managing trustee, and no other trustee is liablefor any of the decisions, acts or transactions of the managing trustee in so far as theyamount to exercise of powers reserved by the trust instrument to the managing trustee.

[Part III A, Section 30A inserted by 1999:19 s.9 effective 10 July 1999]

PART IV

POWERS OF THE COURT

Appointment of New Trustees

Power of court to appoint new trusteesThe court may, whenever it is expedient to appoint a new trustee or new

trustees, and it is found inexpedient, difficult or impracticable so to do without theassistance of the court, make an order appointing a new trustee or new trustees either insubstitution for or in addition to any existing trustee or trustees, or although there is noexisting trustee.

In particular and without prejudice to the generality of subsection (1), the courtmay make an order appointing a new trustee in substitution for a trustee who is incapable,by reason of mental disorder within the meaning of the Mental Health Act 1968 [title 11 item36], of exercising his functions as trustee, or is a bankrupt, or is a corporation which is inliquidation or has been dissolved, or who for any other reason whatsoever appears to thecourt to be undesirable as a trustee.

An order under this section, and any consequential vesting order orconveyance, shall not operate further or otherwise as a discharge to any former orcontinuing trustee than an appointment of new trustees under any power for that purposecontained in any instrument would have operated.

Nothing in this section gives power to appoint an executor or administrator.

(c)

30A

31 (1)

(2)

(3)

(4)

27

TRUSTEE ACT 1975

Power of court to authorise remunerationThe court may, in any case in which the circumstances appear to it so to justify,

authorise any person to charge such remuneration for his services as trustee as the courtmay think fit.

Powers of new trustee appointed by the courtEvery trustee appointed by a court of competent jurisdiction shall, as well before

as after the trust property becomes by law, or by assurance, or otherwise, vested in him,have the same powers, authorities, and discretions, and may in all respects act as if he hadbeen originally appointed a trustee by the instrument, if any, creating the trust.

Vesting Orders

Vesting orders of landSubject to subsection (2), where—

the court appoints or has appointed a trustee, or where a trustee has beenappointed out of court under any statutory or express power; or

a trustee entitled to or possessed of any land or estate or interest therein,whether by way of mortgage or otherwise, or entitled to a contingent righttherein, either solely or jointly with any other person—

is an infant; or

is out of the jurisdiction of the court; or

cannot be found, or, being a corporation, has been dissolved; or

it is uncertain who was the survivor of two or more trustees jointly entitledto or possessed of any estate or interest in land; or

it is uncertain whether the last trustee known to have been entitled to orpossessed of any estate or interest in land is living or dead; or

there is no estate representative of a deceased trustee who was entitled toor possessed of any estate or interest in land, or where it is uncertain whois the estate representative of a deceased trustee who was entitled to orpossessed of any estate or interest in land; or

a trustee jointly or solely entitled to or possessed of any estate or interestin land, or entitled to a contingent right therein, has been required, by oron behalf of a person entitled to require a conveyance of the land or estateor interest or a release of the right, to convey the land or estate or interestor to release the right, and has wilfully refused or neglected to convey theland or estate or interest or release the right for twenty-eight days after thedate of the requirement; or

land or any estate or interest therein is vested in a trustee whether by wayof mortgage or otherwise, and it appears to the court to be expedient;

32

33

34 (1)

(a)

(b)

(i)

(ii)

(iii)

(c)

(d)

(e)

(f)

(g)

28

TRUSTEE ACT 1975

the court may make an order (in this Act referred to as a “vesting order”) vesting the landor estate or interest therein in any such person in any such manner and for any such estateor interest as the court may direct, or releasing or disposing of the contingent right to suchperson as the court may direct.

Where an order made under subsection (1)—

is consequential on the appointment of a trustee the land or estate orinterest therein shall be vested for such estate or interest as the court maydirect in the persons who on the appointment are the trustees; and

relates to a trustee entitled or formerly entitled jointly with another person,and such trustee is an infant or out of the jurisdiction of the court or cannotbe found, or being a corporation has been dissolved, the land estateinterest or right shall be vested in such other person who remains entitled,either alone or with any other person the court may appoint.

Orders as to contingent rights of unborn personsWhere any estate or interest in land is subject to a contingent right in an unborn

person or class of unborn persons who, on coming into existence would, in respect thereof,become entitled to or possessed of that estate or interest on any trust, the court may makean order—

releasing the land or estate or interest therein from the contingent right;or

vesting in any person the estate or interest to or of which the unbornperson or class of unborn persons would, on coming into existence, beentitled or possessed in the land.

Vesting order in place of conveyance by infant mortgageeWhere any person entitled to or possessed of any estate or interest in land, or

entitled to a contingent right in land, by way of security for money, is an infant, the courtmay make an order vesting or releasing or disposing of the estate or interest in the land orthe right in like manner as in the case of an infant trustee.

Vesting order in place of conveyance by estate representative of mortgageeWhere—

a mortgagee of land has died without having entered into possession or intothe receipt of the rents and profits thereof; and

the money due in respect of the mortgage has been paid to a person entitledto receive the same, or that person consents to an order for thereconveyance of the land,

the court may make an order vesting the land in such person in such manner and for suchestate or interest as the court may direct, where—

(2)

(a)

(b)

35

(a)

(b)

36

37

(a)

(b)

29

TRUSTEE ACT 1975

an estate representative or devisee of the mortgagee is out of thejurisdiction of the court or cannot be found, or, being a corporation, hasbeen dissolved; or

an estate representative or devisee of the mortgagee on demand made byor on behalf of a person entitled to require a conveyance of the land hasstated in writing that he will not convey the same or does not convey thesame for the space of twenty-eight days after a proper instrument forconveying the land has been tendered to him by or on behalf of the personso entitled; or

it is uncertain which of several devisees of the mortgagee was the survivor;or

it is uncertain whether the estate representative of the mortgagee or thesurvivor of several devisees of the mortgagee is living or dead; or

there is no estate representative to a mortgagee who has died intestate asto the land, or where the mortgagee has died, and it is uncertain who is hisestate representative or devisee.

Vesting order consequential on order for sale or mortgage of landWhere the court gives a judgment or makes an order directing the sale or mortgage

of any land, every person who is entitled to or possessed of any estate or interest in the land,or entitled to a contingent right therein, and is a party to the action or proceeding in whichthe judgment or order is given or made or is otherwise bound by the judgment or order,shall be deemed to be so entitled or possessed, as the case may be, as a trustee for thepurposes of this Act, and the court may, if it thinks expedient, make an order vesting theland or any part thereof for such estate or interest as the court thinks fit in the purchaseror mortgagee or in any other person.

Vesting order consequential on judgment for specific performance, etc.Where a judgment is given for the specific performance of a contract concerning

any estate or interest in land, or for the partition, or for sale or exchange of any estate orinterest in land, or generally where any judgment is given for the conveyance of any estateor interest in land either in cases arising out of the doctrine of election or otherwise, thecourt may declare—

that any of the parties to the action are trustees of any estate or interest inthe land or any part thereof within the meaning of this Act; or

that the estates or interests of unborn persons who might claim under anyparty to the action, or under the will or voluntary settlement of anydeceased person who was during his lifetime a party to the contract ortransaction concerning which the judgment is given, are the estates orinterests of persons who, on coming into existence, would be trusteeswithin the meaning of this Act;

and thereupon the court may make a vesting order relating to the rights of those persons,born and unborn, as if they had been trustees.

(i)

(ii)

(iii)

(iv)

(v)

38

39

(a)

(b)

30

TRUSTEE ACT 1975

Effect of vesting orderA vesting order under any of the foregoing provisions shall in the case of a vesting

order consequential on the appointment of a trustee, have the same effect—

as if the persons who before the appointment were the trustees, if any, hadduly executed all proper conveyances of the land for such estate or interestas the court directs; or

if there is no such person, or no such person of full capacity, as if suchperson had existed and been of full capacity and had duly executed allproper conveyances of the land for such estate or interest as the courtdirects,

and shall in every other case have the same effect as if the trustee or other person ordescription or class of persons to whose rights or supposed rights the said provisionsrespectively relate had been an ascertained and existing person of full capacity, and hadexecuted a conveyance or release to the effect intended by the order.

Power to appoint person to conveyWhere a vesting order can be made under any of the foregoing provisions, the court

may, if it is more convenient, appoint a person to convey the land or any interest therein orrelease the contingent right, and a conveyance or release by that person in conformity withthe order shall have the same effect as an order under the appropriate provision.

Vesting orders as to stock and things in actionSubject to subsection (2), where—

the court appoints or has appointed a trustee, or where a trustee has beenappointed out of court under any statutory or express power; or

a trustee entitled, whether by way of mortgage or otherwise, alone or jointlywith another person to stock or to a thing in action—

is an infant; or

is out of the jurisdiction of the court; or

cannot be found, or, being a corporation, has been dissolved; or

neglects or refuses to transfer stock or receive the dividends or incomethereof, or to sue for or recover a thing in action, according to the direc-tion of the person absolutely entitled thereto for twenty-eight days nextafter a request in writing has been made to him by the person soentitled; or

neglects or refuses to transfer stock or receive the dividends or incomethereof, or to sue for or recover a thing in action for twenty-eight daysnext after an order of the court for that purpose has been served onhim; or

40

(a)

(b)

41

42 (1)

(a)

(b)

(i)

(ii)

(iii)

(iv)

(v)

31

TRUSTEE ACT 1975

it is uncertain whether a trustee entitled alone or jointly with anotherperson to stock or to a thing in action is alive or dead; or

stock is standing in the name of a deceased person whose estaterepresentative is under disability; or

stock or a thing in action is vested in a trustee whether by way of mortgageor otherwise and it appears to the court to be expedient,

the court may make an order vesting the right to transfer or call for a transfer of stock, orto receive the dividends or income thereof, or to sue for or recover the thing in action, inany such person as the court may appoint.

Where—

an order made under subsection (1) is consequential on the appointmentof a trustee, the right shall be vested in the persons who, on theappointment, are the trustees; and

the person whose right is dealt with by an order made under subsection(1) was entitled jointly with another person, the right shall be vested in thatlast-mentioned person either alone or jointly with any other person whomthe court may appoint.

Where a vesting order can be made under this section, the court may, if it ismore convenient, appoint some proper person to make or join in making the transfer so,however, that the person appointed to make or join in making a transfer of stock shall besome proper officer of the bank, or the company or society whose stock is to be transferred.

The person in whom the right to transfer or call for the transfer of any stock isvested by an order of the court under this Act, may transfer the stock to himself or any otherperson, according to the order, and the bank and all other companies shall obey every orderunder this section according to its tenor.

After notice in writing of an order under this section it shall not be lawful forthe bank or any other company to transfer any stock to which the order relates or to payany dividends thereon except in accordance with the order.

The court may make declarations and give directions concerning the mannerin which the right to transfer any stock or thing in action vested under this Act is to beexercised.

The provisions of this Act as to vesting orders shall apply to shares in Britishships registered in Bermuda as if they were stock.

Vesting orders of charity propertyThe powers conferred by this Act as to vesting orders may be exercised for vesting

any estate or interest in land, stock, or thing in action in any trustee of a charity or societyover which the court would have jurisdiction upon action duly instituted, whether theappointment of the trustee was made by instrument under a power or by the court underits general or statutory jurisdiction.

(c)

(d)

(e)

(2)

(a)

(b)

(3)

(4)

(5)

(6)

(7)

43

32

TRUSTEE ACT 1975

Vesting orders in relation to infant’s beneficial interestsWhere an infant is beneficially entitled to any property the court may, with a view

to the application of the capital or income thereof for the maintenance, or education, orotherwise for the benefit of the infant, make an order—

appointing a person to convey such property; or

in the case of stock, or a thing in action, vesting in any person the right totransfer or call for a transfer of such stock, or to receive the dividends orincome thereof, or to sue for and recover such thing in action, upon suchterms as the court may think fit.

Orders made upon certain allegations to be conclusive evidenceWhere a vesting order is made as to any land under this Act or under any Act

relating to persons of unsound mind founded on an allegation—

of the personal incapacity of a trustee or mortgagee; or

that a trustee or mortgagee or the estate representative of or other personderiving title under a trustee or mortgagee is out of the jurisdiction of thecourt or cannot be found, or being a corporation has been dissolved; or

that it is uncertain which of two or more trustees, or which of two or morepersons interested in a mortgage, was the survivor; or

that it is uncertain whether the last trustee or the estate representative ofor other person deriving title under a trustee or mortgagee, or the lastsurviving person interested in a mortgage is living or dead; or

that any trustee or mortgagee has died intestate without leaving a personbeneficially interested under the intestacy or has died and it is not knownwho is his estate representative or the person interested,

the fact that the order has been so made shall be conclusive evidence of the matter so allegedin any court upon any question as to the validity of the order; but this section does notprevent the court from directing a reconveyance or surrender or the payment of costsoccasioned by any such order if improperly obtained.

Application of vesting order to property out of BermudaThe powers of the court to make vesting orders under this Act shall extend to all

property wherever situated.

Jurisdiction to make other Orders

Power of court to authorise transactions relating to trust propertyWhere any transaction affecting or concerning any property vested in trustees,

is in the opinion of the court expedient, but the same cannot be effected by reason of theabsence of any power for that purpose vested in the trustees by the instrument, if any,creating the trust, or by any provision of law, the court may by order confer upon thetrustees, either generally or in any particular instance, the necessary power for the purpose,

44

(a)

(b)

45

(a)

(b)

(c)

(d)

(e)

46

47 (1)

33

TRUSTEE ACT 1975

on such terms and subject to such provisions and conditions, if any, as the court may thinkfit and may direct in what manner any money authorised to be expended, and the costs ofany transaction, are to be paid or borne as between capital and income.

The court may, from time to time, rescind or vary any order made under thissection or may make any new or further order.

An application to the court under this section may be made by the trustees, orby any of them, or by any person beneficially interested under the trust.

In this section, “transaction” includes any sale, exchange, assurance, grant,lease, partition, surrender, reconveyance, release, reservation, or other disposition, and anypurchase or other acquisition, and any covenant, contract, or option, and any investmentor application of capital, and any compromise or other dealing, or arrangement.

Jurisdiction of court to set aside flawed exercise of fiduciary powerIf the court, in relation to the exercise of a fiduciary power, is satisfied on an

application by a person specified in subsection (5) that the conditions set out at subsection(2) are met, the court may—

set aside the exercise of the power, either in whole or in part, and eitherunconditionally or on such terms and subject to such conditions as thecourt may think fit; and

make such order consequent upon the setting aside of the exercise of thepower as it thinks fit.

The conditions referred to in subsection (1) are that—

in the exercise of the power, the person who holds the power did not takeinto account one or more considerations (whether of fact, law, or acombination of fact and law) that were relevant to the exercise of the power,or took into account one or more considerations that were irrelevant to theexercise of the power; and

but for his failure to take into account one or more such relevantconsiderations or his having taken into account one or more suchirrelevant considerations, the person who holds the power—

would not have exercised the power;

would have exercised the power, but on a different occasion to that onwhich it was exercised; or

would have exercised the power, but in a different manner to that inwhich it was exercised.

If and to the extent that the exercise of a power is set aside under this section,to that extent the exercise of the power shall be treated as never having occurred.

The conditions set out in subsection (2) may be satisfied without it being allegedor proved that in the exercise of the power, the person who holds the power , or any adviserto such person, acted in breach of trust or in breach of duty.

(2)

(3)

(4)

47A (1)

(a)

(b)

(2)

(a)

(b)

(i)

(ii)

(iii)

(3)

(4)

34

TRUSTEE ACT 1975

An application to the court under this section may be made by—

the person who holds the power;

where the power is conferred in respect of a trust or trust property, by anytrustee of that trust, or by any person beneficially interested under thattrust, or (in the case of a purpose trust) by any person appointed by orunder the trust for the purposes of section 12B(1) of the Trusts (SpecialProvisions) Act 1989;

where the power is conferred in respect of a charitable trust or otherwisefor a charitable purpose, the Attorney-General; or

with the leave of the court, any other person.

No order may be made under subsection (1) which would prejudice a bona fidepurchaser for value of any trust property without notice of the matters which allow the courtto set aside the exercise of a power over or in relation thereto.

The jurisdiction conferred upon the court by this section may be exercised bythe court in respect of fiduciary powers, whether conferred or exercised before, on or afterthe commencement date of the Trustee Amendment Act 2014.

In this section—

“fiduciary power” means any power that, when exercised, must be exercised for thebenefit of or taking into account the interests of at least one person other thanthe person who holds the power; and

“power” includes a discretion as to how an obligation is performed;

“person who holds the power ” includes any person on whom a power has beenconferred, whether or not that power is exercisable by that person alone, andany person to whom the exercise of a power has been delegated.

[Section 47A inserted by 2014 : 28 s. 2 effective 29 July 2014]

Jurisdiction of court to vary trustsSubject to subsection (2), where property is held on any trusts or settlements

arising under any will, settlement or other disposition, the court may if it thinks fit by orderapprove on behalf of—

any person having, directly or indirectly, an estate or interest, whethervested or contingent, under the trusts or settlements who by reason ofinfancy or other incapacity is incapable of assenting; or

any person (whether ascertained or not) who may become entitled, directlyor indirectly, to an estate or interest under the trusts or settlements asbeing at a future date or on the happening of a future event a person of anyspecified description or a member of any specified class of persons so,however, that this paragraph shall not include any person who would beof that description, or a member of that class, as the case may be, if the

(5)

(a)

(b)

(c)

(d)

(6)

(7)

(8)

48 (1)

(a)

(b)

35

TRUSTEE ACT 1975

said date had fallen or the said event had happened at the date of theapplication to the court; or

any person unborn; or

any person in respect of any discretionary interest of his under protectivetrusts where the interest of the principal beneficiary has not failed ordetermined,

any arrangement (by whomsoever proposed, and whether or not there is any other personbeneficially interested who is capable of assenting thereto) varying or revoking all or any ofthe trusts or settlements, or enlarging the powers of the trustees of managing oradministering any of the property subject to the trusts or settlements.

Except by virtue of subsection (1)(d) the court shall not approve anarrangement on behalf of any person unless the carrying out of the arrangement would befor the benefit of that person.

In subsection (1), “protective trusts” means the trusts specified in section 25(1)(a) and (b) or any like trusts, “the principal beneficiary” has the same meaning as in section25(1) and “discretionary interest” means an interest arising under the trust specified insection 25(1)(b) or any like trust.

Nothing in this section shall be taken to limit the powers conferred by section47.

Persons entitled to apply for ordersAn order under this Act for the appointment of a new trustee or concerning any

estate or interest in land, stock, or thing in action subject to a trust, may be made on theapplication of any person beneficially interested in the land, stock, or thing in action,whether under disability or not, or on the application of any person duly appointed trusteethereof.

An order under this Act concerning any estate or interest in land, stock, orthing in action subject to a mortgage may be made on the application of any personbeneficially interested in the equity of redemption, whether under disability or not, or of anyperson interested in the money secured by the mortgage.

Power to give judgment in absence of a trusteeWhere in any action the court is satisfied that diligent search has been made for

any person who, in the character of trustee, is made a defendant in any action, to serve himwith a process of the court, and that he cannot be found, the court may hear and determinethe action and give judgment therein against that person in his character of a trustee as ifhe had been duly served, or had entered an appearance in the action, and had also appearedby his counsel at the hearing, but without prejudice to any interest he may have in thematters in question in the action in any other character.

Power to charge costs on trust estateThe court may order the costs and expenses of and incidental to any application

for an order under this Act or for any order or declaration in respect of any property subject

(c)

(d)

(2)

(3)

(4)

49 (1)

(2)

50

51

36

TRUSTEE ACT 1975

to a trust, or of and incidental to any such order or declaration, or any document executedor act performed in pursuance thereof, to be raised and paid out of the property in respectwhereof the same is made or performed, or out of the income thereof, or to be borne andpaid in such manner and by such persons as to the court may seem just.

Power to relieve trustee from personal liabilityIf it appears to the court that a trustee, whether appointed by the court or

otherwise, is or may be personally liable for any breach of trust, whether the transactionalleged to be a breach of trust occurred before, on or after 1 March 1975, but has actedhonestly and reasonably, and ought fairly to be excused for the breach of trust and foromitting to obtain the directions of the court in the matter in which he committed suchbreach, then the court may relieve him either wholly or partly from personal liability for thesame.

In this section “trustee” includes a person who has ceased to be a trustee andthe estate representative of a deceased trustee.

Power to make beneficiary indemnify for breach of trustWhere a trustee commits a breach of trust at the instigation or request or with

the consent in writing of a beneficiary, the court may, if it thinks fit, make such order as tothe court seems just, for impounding all or any part of the estate or interest of thebeneficiary in the trust estate by way of indemnity to the trustee or persons claimingthrough him.

This section applies to breaches of trust committed as well before as on or after1 March 1975.

Payment into court

Payment into court by trusteesTrustees, or the majority of trustees, having in their hands or under their

control money or securities belonging to a trust, may pay the same into court; and the sameshall, subject to rules of court, be dealt with according to the orders of the court.

The receipt or certificate of the proper officer shall be a sufficient discharge totrustees for the money or securities so paid into court.

Where money or securities are vested in any persons as trustees, and themajority are desirous of paying the same into court, but the concurrence of the other orothers cannot be obtained, the court may order the payment into court to be made by themajority without the concurrence of the other or others.

Where any such money or securities are deposited with any bank, broker, orother depositary, the court may order payment or delivery of the money or securities to themajority of the trustees for the purpose of payment into court.

Every transfer payment and delivery made in pursuance of any such order shallbe valid and take effect as if the same had been made on the authority or by the act of allthe persons entitled to the money and securities so transferred, paid, or delivered.

52 (1)

(2)

53 (1)

(2)

54 (1)

(2)

(3)

(4)

(5)

37

TRUSTEE ACT 1975

Civil penaltyWhere a non-professional trustee knowingly and wilfully contravenes section

13AA, the court may impose a civil penalty in the amount of seven thousand five hundreddollars.

A civil penalty levied pursuant to section 13AA shall be enforced as a civil debt.

For the avoidance of doubt—

“court” shall have the same meaning as in section 1 of this Act.

A non-professional trustee, being a recipient of a civil penalty under subsection(1), may appeal the imposition of the penalty within seven days of the order being issued bythe court.

Any appeal under subsection (4) shall be commenced by notice of motion filedwithin seven days of the notification of the decision of the court; and the Attorney-Generalshall be served with a copy of the notice.

[Section 54A inserted by 2017 : 35 s. 3 effective 3 November 2017]

Civil penalty - Chief Justice may make rulesFor the purposes of section 54A, the Chief Justice may make rules generally

for regulating civil penalty proceedings under this Act and, without prejudice to thegenerality of the foregoing, may make rules in respect of any matter which he considersnecessary for the purposes of any proceedings under this Act.

Section 6 of the Statutory Instruments Act 1977 shall not apply to rules madeunder this section.

[Section 54B inserted by 2017 : 35 s. 3 effective 3 November 2017]

Civil penalty - service of noticesAny notice, order or other document which is required to be served under this

Act on any person may be served—

by delivering it to the person on whom it is to be served;

by leaving it at the usual or last known place of abode of that person;

by sending it by prepaid post addressed to that person at his usual or lastknown place of abode;

in the case of a body corporate, by delivering it or sending it by prepaidpost to the secretary or clerk of that body at its registered office or otherplace of business;

if it is not practicable after reasonable enquiry to ascertain the name oraddress of the owner of any land on whom it should be served, byaddressing it to him by the description of “owner” or as the case may be“occupier” of the land to which it relates and by delivering it to some personoccupying any premises on the land; or if there is no such person to whom

54A (1)

(2)

(3)

(4)

(5)

54B (1)

(2)

54C (1)

(a)

(b)

(c)

(d)

(e)

38

TRUSTEE ACT 1975

it can be delivered, by affixing it or a copy thereof to some conspicuous partof the premises.

Service effected by delivery pursuant to subsection (1)(a) or (d) shall have effectfrom the time of delivery.

Service effected otherwise than by delivery shall be deemed to have beeneffected three days after the steps taken pursuant to any provisions of subsection (1) havebeen taken, unless and to the extent that the contrary is proved.

[Section 54C inserted by 2017 : 35 s. 3 effective 3 November 2017]

PART V

INVESTMENTS[Part V, Sections 55 - 63 substituted by 1999:19 s.10(1) effective 10 July 1999 subject to savings ins.10(3) of 1999:19]

[Omitted]

PART VA

INVESTMENTS

Investment powersA trustee’s power of investment under this section shall be subject to any

enlargement or restriction of his powers of investment set out in the instrument creatingthe trust.

Nothing in this section shall restrict the powers of the court under section 47.

A trustee may invest or otherwise apply trust property in the purchase oracquisition of property of any kind, whether or not situated in Bermuda, whether or notincome-producing, with or without security, and whether for the purpose of—

receiving an appropriate total return from income and capital appreciation;

controlling or limiting risk; or

benefiting persons interested in any way whatsoever in the incomeproduced by trust property;

or for a mixture of such purposes.

In so investing or otherwise applying trust property, a trustee shall act as aprudent investor would, by considering the purposes, terms, distribution requirements andother circumstances of the trust and by exercising reasonable care, skill and caution.

In determining whether a trustee has acted in accordance with this section,any decision to invest or otherwise apply trust property shall be evaluated in the context of

(2)

(3)

55

55A (1)

(2)

(3)

(a)

(b)

(c)

(4)

(5)

39

TRUSTEE ACT 1975

the trust property as a whole and as part of an overall investment strategy having risk andreturn objectives reasonably suited to the trust.

[Part VA, Section 55A inserted by 1999:19 s.10(1) effective 10 July 1999]

PART VI

GENERAL PROVISIONS

Indemnify to banks and othersThis Act, and every order purporting to be made under this Act, shall be a complete

indemnity to banks and to all persons for any acts done pursuant thereto, and it shall notbe necessary for a bank or for any person to inquire concerning the propriety of the order,or whether the court by which the order was made had jurisdiction to make it.

Enactments repealed[omitted]

Commencement[omitted]

64

65

66

40

TRUSTEE ACT 1975

FIRST SCHEDULE

AUTHORISED INVESTMENTS

[Omitted]

[First Schedule substituted by Part VA by 1999:19 s.10(1) effective 10 July 1999subject to savings in s.10(3) of 1999:19]

41

TRUSTEE ACT 1975

SECOND SCHEDULE

ENACTMENTS REPEALED

[Omitted]

[Assent Date: 31 January 1975]

[This Act was brought into operation on 1 March 1975]

[Amended by:1977 : 35BR 34 / 19781984 : 10BR 81 / 19991999 : 192001 : 202001 : 222004 : 342012 : 272014 : 282017 : 352018 : 5]

42